Separation of powers principles derived from Articles I (establishing the Legislative Branch and vesting lawmaking power in Congress), II (establishing the Executive Branch and vesting “executive power” in the President), and III (establishing the Judicial Branch and vesting judicial power in the federal courts) of the United States Constitution reveal another circuit split pertaining to expungements that the Supreme Court has not resolved,123 creating another argument favoring the need for federal legislation to bring clarity and equity to the issue.124
While several circuits and district courts have ordered, albeit rarely, the expungement of criminal records retained by the Executive Branch pursuant to their inherent equitable powers,125 at least two circuits have held that to do so would violate separation of powers between the three branches of government. Ironically, the Seventh Circuit – one of the most liberal circuits as concerning its interpretation of a district court’s equitable powers to expunge judicial criminal records – has held it is powerless to expunge Executive Branch records without a statute expressly conferring such authority on the Judiciary even before Kokkonen.126 “To obtain expungement of records maintained by the FBI or any other Executive Branch agency, [a petitioner] must go directly to the Executive Branch. If the Executive Branch refuses, Congress can act to confer jurisdiction on the federal courts.”127 That Court of Appeals reiterated, “[F]ederal courts are without jurisdiction to order an Executive Branch agency to expunge what are admittedly accurate records of a person's indictment and conviction. We are without
123
See Note 24. 124
U.S. Const. art. I-III. 125
See discussion at § III. 126
Janik, 10 F.3d at 473. 127
statutory or constitutional authority to hold otherwise. In fact, in Section 534, Congress suggested the opposite—that is, in favor of requiring the Executive Branch to maintain accurate records of such convictions.”128
Similarly, the Sixth Circuit Court of Appeals in Lucido found that to order the removal of FBI records of indictments resulting in acquittal “would amount to an extraordinary inter-branch incursion, one that should not lightly be effectuated through the federal courts' unexceptional right to oversee their own criminal cases.”129
One scholar argued earlier this year that since (in her view) “[t]he federal courts’ ancillary jurisdiction does not stretch so far as to allow the judiciary to be able to encroach on the executive branch’s power by having the authority to expunge federal agency documents […], there should be an equitable expungement petition process through the FBI that will afford individuals the opportunity to have federally maintained records of arrest and indictments expunged.130 Ms. Wurie’s law journal comment goes on to propose a process by which individuals could petition the FBI’s Criminal Justice Information Services Division to have their criminal records contained within the Executive Branch expunged by the Justice Department itself.131
This approach, while laudable for its ingenuity and intention of providing a mechanism for Executive Branch expungements under existing law, leaves much to be desired. Putting in charge of expungement requests the very agency at the crux of most federal investigations and prosecutions – many of which were botched in those cases where defendants were acquitted but
128 Flowers, 389 F.3d at 738-39. 129 Lucido, 612 F.3d at 875. 130
Wurie, supra note 5, at 51-52. 131
nevertheless denied expungement132 – creates a situation of the fox guarding the henhouse. Moreover, absolving the court system of involvement in overseeing expungement requests would deny petitioners any meaningful method of appealing arbitrary or capricious denials by the FBI’s appointed hearing officer.
Even if the Sixth and Seventh Circuits are correct in their constrictive view that courts may not rely on their inherent equitable powers to order the expunction of Executive Branch criminal records in extreme cases, there is no disagreement about whether Congress may grant that authority to the courts. “Consistent with separation of powers, Congress may delegate to judicial branch” additional authority that comports with the functions of the judiciary.133 Indeed, the Seventh Circuit has explicitly stated, “Congress can act” to confer such jurisdiction on the courts.134 Therefore, the legislation proposed by this paper would resolve the circuit split over ancillary jurisdiction as well as the circuit split over separation of powers. Federal legislation would maintain oversight by neutral arbiters – federal courts – rather than requiring the approval of an Executive Branch investigative or prosecutorial agency.
While the Supreme Court has never considered the issue, most circuits have followed the Third Circuit’s holding that the inverse situation – an Executive Branch order expunging judicial records – is precluded insofar as a presidential pardon does not expunge the subject conviction and the President may not order the Judicial Branch to expunge its records.135 The Supreme Court held in Ex Parte Garland:
132
See § III. 133
Mistretta v. United States, 488 U.S. 361 (1989). 134
Janik, 10 F.3d at 473. 135
United States v. Noonan, 906 F.2d 952 (3d Cir. 1990) (a draft violator who was a member of a group of such offenders pardoned en masse by President Carter asserted that his pardon operated as an expungement of his convictions. See also United States v. Bays, 589 F.3d 1035 (9th Cir. 2009) (Tallman, J., holding a pardon does not expunge the subject offense).
A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.136
However, a half-century after Garland, the Court held that acceptance of a pardon necessarily implies guilt.137 Reading the two decisions together and attempting to reconcile them, the Third Circuit found that a pardon amounted to “an executive prerogative of mercy, not of judicial record-keeping”138 and the President could not directly or indirectly expunge a Judicial Branch record using the pardon power, despite its constitutional basis.139
The President could likely seal or destroy FBI, Department of Justice, or other Executive Branch records pertaining to a criminal arrest or conviction. The Department of Justice opined to the United States Pardon Attorney under President Bush, “Pardons that address the innocence of the pardonee have not to date also commanded expungement of Executive Branch records of the offense. If a President chose simultaneously to issue a pardon and order the Executive Branch to expunge any such records, we believe that order would have the effect intended, subject to any
136
Ex Parte Garland, 71 U.S. (4. Wall.) 333, 381-82 (1866) (invalidating a statute requiring allegiance from Confederate attorneys seeking to appear before federal courts where a former Confederate lawyer and Senator had been pardoned by the President).
137
Lahny R. Silva, Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders, 79 U. CIN.L.REV. 155, 179-84 (2010) (citing Burdick v. United States, 236 U.S. 79 (1915)).
138
Noonan, 906 F.2d at 955. 139
statutory constraints on executive record keeping.”140 However, a concurrent pardon and expungement order would necessarily operate as a secret pardon, lest the expungement lose its value to the ex-offender in search of redemption, and judicial records would be unaffected.
The foregoing section illustrates that even if an ex-offender or exonerated defendant succeeds in obtaining a rare expungement order in the Sixth or Seventh Circuits, or if an ex- offender obtains both a pardon and an expungement order from the President of the United States, such expungements would not serve to remove the deleterious disabilities associated with the petitioner’s criminal record since records of the charge(s) would subsist in the other branch. This only compounds the need for comprehensive federal expungement legislation.